Courts

Man who left estate ‘of a considerable value’ to second wife declared in will that he had already provided for his children

Two children have brought High Court proceedings against deceased’s joint executors

The two children have brought High Court proceedings against the deceased’s joint executors and personal representatives who are two solicitors who acted for him over the years. Photograph: Bryan O'Brien

Fri Apr 19 2024 - 15:45

Two children of a man who decided he had provided for them during his lifetime and then left most of his considerable estate to his second wife claim their father failed to make proper provision for them in his will.

The two have brought High Court proceedings against the deceased’s joint executors and personal representatives who are two solicitors who acted for him over the years.

The two children opposed an application by the second wife to be joined as a defendant in the proceedings.

Mr Justice Conor Dignam ruled she could not be joined as a defendant but would be entitled to attend the hearing and receive copies of the legal documents providing she undertook to keep them confidential.

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The judge said the deceased had four children from his first marriage, including the two taking proceedings. He separated from their mother some decades ago, divorced her later, married again and had another child with his second wife. He also had a child from another relationship.

The divorce and subsequent marriage appear to be in issue or at least are, at this stage, not admitted by the two children bringing the case, the judge said.

The man died in 2019 leaving what the judge described as an estate “of a considerable value”. In his will, he declared that he had made proper provision for each of his children in accordance with his means during his life.

Therefore, he was not making any provision for them in his will and left almost the entirety of his estate to his second wife, save for a legacy of €12,000 in favour of his first wife and a “discretionary wish” that she (his first wife) be paid an annual sum of €12,000 by his second wife.

The two children’s proceedings were initiated in 2021 and later that year, following a request from the second wife, the executors asked the children’s lawyers that they be allowed to join her as a defendant (with the executors).

This was refused and the executors brought an application to the court seeking to have her joined.

It was argued by the executors that, among other things, joining the second wife was necessary to enable the court to effectively and completely adjudicate and settle all questions involved in the case.

As professional executors, they said, they will not be as familiar with the precise relevant circumstances, but could not take instructions from the second wife if she was not a party. Without her, it would also make it very difficult for the executors to settle the proceedings, because her consent would be required.

As surviving spouse and residuary legatee and devisee of the estate, the second wife has a “direct interest” in the subject matter of the litigation, and her “proprietary and pecuniary rights” are directly affected by the proceedings, “financially and legally”, it was argued.

There was also the question that if the two children successfully dispute her status, then the second wife’s legal, financial and tax status as a surviving spouse could be affected.

The two children argued that whether proprietary or pecuniary rights are directly affected is not the test for being joined in such proceedings, as the executors can represent her interests in the absence of any conflict.

They also rejected the submission that the second wife will encounter an insurmountable hurdle in attending the hearing or reading the affidavits unless she is a party to the proceedings due to the operation of a rule which means all such proceedings must be held in private (in camera).

The court’s discretion allowed it to permit her to see the papers or attend the hearing, and therefore it is not necessary to join her as a party, they said. They also expressed concern about the increase in costs that would be caused by joining her as defendant.

Mr Justice Dignam refused the application to join her but said the appropriate way to deal with the matter was to permit the second wife to be provided with copies of the documents to be used in the case, and to permit her to attend court (even though she would not be a party).

He said that to ensure the integrity of the in-camera rule, she must first agree in writing with the executors’ solicitors not to disclose those documents to a third party, he said.

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